This MachineTrader™ Platform Beta Agreement (this “Agreement”) is made between between MachineTrader.io Inc. (“MT”), a Delaware C corporation, having its principal place of business at 30 Wall Street, 8th Floor, New York, NY 10005, and USER effective today. MT and USER may be collectively referred to herein as the “Parties” and each individually as a “Party”.
RECITALS
A. WHEREAS, MT has developed and provides to its customers access to and use of its beta-version of its proprietary MachineTrader™ platform on a software as a service basis, which enables automated, machine-learning driven trading of securities and cryptocurrencies (the “Platform”);
B. WHEREAS, MT may also provide additional services to its customers with respect to the development, monitoring and implementation of the Platform, as may be more specifically agreed upon from time to time (collectively, the “Services” and each a “Service”);
C. WHEREAS, Customer desires to access and use the Platform and, as may be specified in a service order between the Parties from time to time, certain of the Services, and MT is willing to provide such Platform and Services in connection therewith, on the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual promises set forth below, the Parties agree as follows:
1. DEFINITIONS.
When used in this Agreement, the following capitalized terms shall have the meanings indicated below:
1.1 “Account” means Customer’s account through which Customer’s Designated Users can access and use the Platform.
1.2 “Affiliate” means, as to any entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity.
1.3 “Alpaca” means Alpaca DB, Inc. and its subsidiaries and affiliates.
1.4 “Alpaca Account” has the meaning set forth in Section 2.2(c) hereof.
1.5 “Confidential Information” means any and all information disclosed by one Party to the other Party, directly or indirectly, in writing, orally, electronically, or in any other form, that is designated, at or before the time of disclosure, as confidential or proprietary, or that is provided under circumstances reasonably indicating that the information is confidential or proprietary, including, without limitation, trade secrets, business plans, technical data, product ideas, personnel, contract and financial information, and the terms of this Agreement and each Service Order, as well as, specifically in the case of MT, the Platform, Services and Technology and any Documentation or other proprietary materials describing the foregoing, and, specifically in the case of Customer, the Customer Data. Notwithstanding the foregoing, Confidential Information does not include information that: (a) is or becomes generally available to the public through no breach of this Agreement or any other agreement by the recipient of the information;
(b) is or was known by the recipient of the information at or before the time such information was received from the disclosure, as evidenced by the recipient’s tangible (including written or electronic) records; (c) is received from a third-party that is not under an obligation of confidentiality to the knowledge of the receiving Party with respect to such information; (d) is independently developed by the recipient of the information without any breach of this Agreement, as evidenced by the recipient’s contemporaneous tangible (including written or electronic) records; or (e) is approved for release in advance in writing by the disclosing Party, as applicable.
1.6 “Customer Data” means any data supplied by Customer to MT and/or accessible by MT as a result of the integration of the Platform with the Alpaca platform, as well as any data obtained by MT in connection with the provision of the Platform and/or the performance of the Services by MT on behalf of the Customer that is related to Customer.
1.7 “Designated Users” means the individual users designated by Customer to access the Account, each of which will be assigned a unique user login and password.
1.8 “Documentation” means the MT MachineTrader™ Operating & Training Guide provided by MT to Customer, as may be updated from time to time.
1.9 “Intellectual Property Rights” means any copyright, trademark, service mark, trade name, patent, patent application, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right arising under the laws of any jurisdiction, whether registered or unregistered.
1.10 “Policies” means criteria or specifications, including content limitations, technical specifications, data processing agreements, user experience policies, each as may be specified by a Party from time to time.
1.11 “Service(s)” has the meaning specified in Recital B hereof, as may be more particularly identified in a Service Order.
1.12 “Service Order” means an insertion order, statement of work, and/or service order that incorporates this Agreement by reference and is signed by both Customer and MT, pursuant to which MT agrees to provide one or more Services.
1.13 “Software” means all software code comprising all or a portion of the Platform, made available by MT for use by Customer, including any modified versions, updates or upgrades of the Software that may be provided to Customer by MT, but does not include source code for the Software.
1.14 “Technology” means any Software or technology incorporated in or made available through the Platform and/or Services by MT to Customer.
1.15 “Platform” has the meaning specified in Recital A hereof, including all Technology related thereto.
2. PLATFORM AND SERVICES
2.1 Use of Platform and Services.
(a) Subject to the terms and conditions of this Agreement, MT hereby grants Customer the right, during the term of this Agreement, to access and use the Platform through Customer’s Account to engage in machine-learning automated trading of securities and/or cryptocurrencies.
(b) MT shall provide Customer with such additional Services as may be set forth in a Service Order from time to time in furtherance of Customer’s use of the Platform. The Services may be modified upon the mutual written agreement of Customer and MT by amendment of such Service Order, executed by both Parties. A form of Service Order is attached hereto as Exhibit B.
(c) MT will provide Customer with that number of user logins and passwords set forth on Exhibit A hereto for its Designated Users to access the Customer’s Account, which number may be increased from time to time, subject to the payment of any additional fees with respect to additional Designated Users set forth in Exhibit A attached hereto. Customer may replace a Designated User upon written notice to MT. Customer and its Designated Users shall not share the user logins and passwords with, or otherwise allow access to the Platform, Services and Account by, any other individuals other than the Designated Users. Customer shall provide to MT all required information, which must be correct, current and complete, in order to create the Account. Customer is responsible for maintaining the confidentiality of the user logins and passwords Customer is given to access the Account, and Customer is fully responsible for all activities that occur under the Account, including activities of its Designated Users. Customer shall maintain all reasonable security measures to ensure that access to the Platform and Services is adequately protected, including without limitation as to confidentiality, authenticity and integrity and shall comply with all MT’ reasonable Policies with respect to same. Customer shall notify MT immediately of any unauthorized use of Customer’s user logins and passwords.
2.2 Customer Acknowledgements and Obligations.
(a) Customer shall provide MT with all reasonable information, cooperation and technical support necessary and/or appropriate to fully implement the Platform and/or Services, as applicable.
(b) Customer shall adhere to all applicable laws, rules, and regulations, including all applicable state and Federal securities laws in connection with the use of the Platform and Services. Additionally, Customer shall adhere to all Policies promulgated by MT in connection with the use of the Platform.
(c) Customer shall maintain an account with Alpaca (an “Alpaca Account”) subject to all terms and conditions Alpaca may require in connection therewith, including any applicable trading policies and compliance requirements. Customer acknowledges and agrees that the use of Alpaca is at Customer’s own risk and MT shall have no liability in connection same.
(d) Customer shall test and evaluate the Platform and report to MT with respect to the usefulness and functionality of the Platform, as well as any perceived defect in the Platform. At the conclusion of the Initial Term, Customer agrees to participate in a formal study to identify both positive and negative features of the Platform. All such feedback shall be deemed Customer Input (as defined in Section 4.4).
(e) Customer acknowledges and agrees that: (i) the Platform is not an official product and has not been commercially released for sale or license by MT; (ii) the Platform may not operate properly, be in final form, or fully functional; (iii) the Platform may contain errors, design flaws or other problems; (iv) it may not be possible to make the Platform fully functional; (v) the information obtained using the Platform may not be accurate and may not accurately correspond to information extracted from any database or other source; (vi) use of the Platform may result in unexpected results, loss of data or communications, or other unpredictable damage or loss; (vii) MT is under no obligation to release a commercial version of the Platform;
and (viii) MT has the right to unilaterally abandon development of the Platform, at any time and without any obligation or liability to Customer.
(f) Customer acknowledges and agrees that it should not rely on the Platform for any reason. Customer is solely responsible for all activities undertaken in connection with the use of the Platform, including all trading activities undertaken through the Platform, including transactions undertaken automatically at the recommendation of or through facilitation by the Platform in conjunction with Customer’s Alpaca Account. Customer further acknowledges and agrees that the Platform, in its beta form, has not been subjected to the same security measures and auditing to which products or services that are deployed for commercial use may have been subjected.
(g) Exclusive of any Technology comprising a part of the Platform and Services, Customer shall be solely responsible, at its sole cost and expense, for (i) providing and maintaining all hardware, software, electrical and other physical requirements necessary for Customer’s use of the Platform and Services, including, without limitation, telecommunications and Internet access connections and links, web browsers, bandwidth, or other equipment, software and services required to access and use the Platform and Services, including the Alpaca Account, (ii) ensuring that all of the foregoing are compatible with the Platform and Services, and (iii) complying with all system requirements provided by MT, including without limitation the Documentation. Customer’s failure to abide by the foregoing may result in disruptions to the Platform and/or Services and MT shall not be liable for any such failure notwithstanding anything to the contrary set forth herein.
2.3 Permitted Use; Limited License. Subject to Customer’s compliance with all the terms and conditions of this Agreement and any additional Policies MT may provide to Customer from time to time upon written notice to Customer, MT hereby grants to Customer a limited, revocable, non-transferable, non-sublicensable, non-assignable, non-exclusive license and right to access and use the Platform along with any subsequent updates and upgrades thereto, during the Term, solely for the purposes of assisting Customer with managing its machine-learning automated trading activities.
2.4 Restrictions. Customer agrees that Customer will not, nor will Customer allow or facilitate a third party to, directly or indirectly (a) reproduce or modify the Platform and/or Services, (b) use any device, software or routine to interfere with the proper working of the Platform and/or Services, (c) unless otherwise approved by MT in writing, use any automated means, including, without limitation, agents, robots, scriMT or spiders, to access, monitor or copy the Platform and/or Services, except as may be set forth in a Service Order, or (d) use the Platform and/or Services in any manner other than as permitted by this Agreement. Without limiting the foregoing, Customer further agrees that it will not take any action that imposes an unreasonable or disproportionately large load on the Platform infrastructure, as reasonably determined by MT. MT reserves all rights not expressly granted under this Agreement.
2.5 Third Party Integrators. Unless otherwise provided as part of the Services, Customer shall be solely responsible for all actions of and agreements with third parties engaged by Customer to provide any integrations of the Platform and/or Services with Customer’s infrastructure.
3.INTELLECTUAL PROPERTY
3.1 Proprietary Rights. As between MT and Customer, MT owns all right, title and interest, including without limitation all Intellectual Property Rights, in and to the Platform and the Services. Use of the Platform and the Services for any purpose not set forth in this Agreement or an applicable Service Order is prohibited. Customer acknowledges such ownership and will not take any action to jeopardize, limit or interfere in any manner with MT’ rights with respect to the Platform and Services. The Platform and Software are protected by copyright and other intellectual property laws and by international treaties. As between MT and Customer, Customer owns all right, title and interest, including without limitation all Intellectual Property Rights, in and to the Customer Data. MT acknowledges such ownership and will not take any action to jeopardize, limit or interfere in any manner with Customer’s rights with respect to the Customer Data.
3.2 No Reverse Engineering. Except as provided in Section 2.3 above, Customer has no rights or licenses with respect to the Platform and/or Services. Without limiting the generality of the foregoing, except as expressly provided in this Agreement, Customer may not (a) sell, resell, copy, distribute, rent, lease, lend, sublicense, transfer, assign or make the Platform and/or Services available to any third party or use the Platform and/or Services on a service bureau basis, (b) modify, decompile, reverse engineer, or disassemble the Platform and/or Services or otherwise attempt to derive any of MT’ Intellectual Property Rights in the Platform and/or Services, (c) create derivative works based on the Platform and/or Services; (d) modify, alter, delete, remove, or obscure any copyright, trademark, patent or other proprietary notices or legends that appear on or are affixed to the Platform and/or Services during the use and operation thereof; or (e) copy any of the Documentation. As between Customer and MT, any changes to, modifications to, or derivative works of the Platform, Technology, and/or Services shall become the exclusive property of MT.
3.3 No License. Nothing in this Agreement shall be deemed to grant Customer any license to use the Platform and/or Services other than as expressly stated herein or in an applicable Service Order.
3.4 Feedback. Customer may, but is not obligated to, provide or submit any suggestions, feedback, comments, ideas, or other information relating to the Platform and/or Services or modifications or enhancements thereto (the “Customer Input”). Any Customer Input is provided on a non-confidential basis regardless of any suggestion to the contrary in any Customer communication, and Customer hereby grants MT a nonexclusive, worldwide, royalty-free, perpetual, irrevocable, sublicensable, transferable right and license to exploit such Customer Input (directly or through third parties) in any manner without compensation or liability to Customer for any purpose whatsoever, including, but not limited to, developing, manufacturing, enhancing, improving, promoting, and marketing MT’ products and services.
3.5 Data Use. Notwithstanding section 4.1 hereof, MT shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Platform and Services and related Technology (including, without limitation, information concerning Customer Data and any data derived from the use thereof, solely for internal purposes), and MT shall have all rights (during and after the Term hereof) to use such information and data solely, (a) to improve and enhance the Platform and Services, for internal purposes, and for such other internal development, diagnostic and corrective purposes related to the Platform and Services as MT may determine in its sole and absolute discretion on a royalty free basis, and (b) in aggregate or other de-identified form in connection with its business, notwithstanding anything to the contrary set forth in this Agreement or any applicable Service Order.
4. CONFIDENTIALITY
4.1 Restrictions on Use and Disclosure. Each Party agrees: (a) to protect and safeguard the other Party’s Confidential Information against unauthorized use, publication or disclosure with the same degree of care that it uses to protect the confidentiality of its own Confidential Information and, in any event, not less than reasonable care; (b) to restrict access to the other Party’s Confidential Information to those of its officers, directors, employees, agents, attorneys, accountants, investment advisors, and contractors who have confidentiality obligations that afford the Confidential Information a substantially similar level of protection as is afforded by this Agreement; and (c) not to use, or permit others to use, the other Party’s Confidential Information except as is reasonably necessary to perform its obligations or exercise its rights under this Agreement. Each Party shall return or destroy all Confidential Information of the other Party upon the termination or expiration of this Agreement or upon the request of the other Party; provided, however, neither Party shall be required to return or destroy information or materials that it must retain during or after termination or expiration of this Agreement in order to receive the benefits of this Agreement or properly perform in accordance with this Agreement or in order to remain compliant with a valid law, regulation, or court or administrative order.
4.2 Exceptions. Notwithstanding any other provision of this Agreement, each Party may disclose Confidential Information of the other Party if such disclosure is required by an order of a court or other governmental authority, law, or regulation, but only to the extent that any such disclosure is necessary and after notice to the other Party if practicable and/or lawful. In such a case, the Party required to make the disclosure shall (if lawfully able to do so), at the other Party’s expense, assist the other Party in obtaining an order protecting the Confidential Information from public disclosure, or in otherwise minimizing and limiting the breadth and scope of such disclosure.
4.3 Confidentiality of Agreement. Each Party agrees that the terms and conditions, but not the existence and general nature, of this Agreement and each Service Order shall be treated as Confidential Information, provided, however, that each Party may disclose the terms and conditions of this Agreement and a Service Order: (a) as required by any court or other governmental body, subject to the provisions of Section 5.2; (b) in connection with an initial public offering or other securities filing; (c) to legal counsel of the Parties; (d) in confidence, to accountants, banks, and financing sources and their advisors; (e) in confidence, in connection with the enforcement of this Agreement or rights under this Agreement or a Service Order; or (f) in confidence, in connection with an actual or prospective merger, acquisition or similar transaction, provided that the Party seeking to so disclose pursuant to (a), (b), or (f) above must provide advance written notice to the non-disclosing Party of any proposed disclosure, to the fullest extent lawfully allowed, and provide the non-disclosing Party with an opportunity to request appropriate protections of its Confidential Information (e.g., protective order or confidential treatment) and shall assist in such efforts using its reasonable best efforts.
4.4 Remedies. Each Party understands and acknowledges that any disclosure or misappropriation of any of the disclosing Party’s Confidential Information in violation of this
Agreement may cause the disclosing Party irreparable harm, the amount of which may be difficult to ascertain and, therefore, agrees that the disclosing Party shall have the right to apply to a court of competent jurisdiction for an order restraining any such further disclosure or misappropriation and for such other relief as the disclosing Party shall deem appropriate. Such right of the disclosing Party shall be in addition to the remedies otherwise available to the disclosing Party at law or in equity.
5. TERM AND TERMINATION
5.1 Term. Unless terminated earlier by either Party in accordance with Section 6.2, this Agreement shall commence on the Effective Date and remain in effect for a period of one (1) year or until all Service Orders entered into hereunder have expired or been terminated in accordance with their terms, whichever is longer (the “Initial Term”). Notwithstanding the foregoing, this Agreement shall be automatically renewed for additional, successive terms of twelve (12) months (each, a “Renewal Term”) unless, at least ninety (90) days prior to the expiration of the Initial Term or any Renewal Term, either Party provides the other Party with written notice of its desire not to renew this Agreement. Such right of non-renewal may be exercised by either Party, with or without cause.
5.2 Termination/Suspension. This Agreement and the provision of the Platform and/or Services may be terminated immediately upon written notice:
(a) by either Party if the other Party breaches any material provision of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach,
(b) by MT if Customer breaches its payment obligations and fails to cure such breach within ten (10) days after receipt of written notice of such breach,
(c) by either Party (i) if the other Party becomes insolvent, (ii) makes an assignment for the benefit of creditors, (iii) files or has filed against it a petition in bankruptcy or seeking reorganization, (iv) has a receiver appointed, or (v) institutes any proceedings for the liquidation or winding up; provided, however, that, in the case any of the foregoing is involuntary, such Party shall only be in breach if such petition or proceeding has not been dismissed within ninety (90) days, or
(d) by either Party immediately upon prior written notice to the other Party hereto for convenience.
5.3 Effect of Termination or Expiration. Upon termination or expiration of this Agreement: (i) MT shall deauthorize Customer’s user logins and passwords and terminate Customer’s access to the Platform and/or Services, and Customer shall immediately cease all use of the Platform and Services. Additionally, (a) both Parties will destroy or return, as requested by the other Party, all Confidential Information of the other Party and copies thereof, and (b) Customer will promptly (not to exceed fifteen (15) business days) pay any Fees owed or incurred to MT prior to such termination or expiration. This Section 6.3 is not intended to limit any remedies that may be available to a Party for an improper termination or breach of this Agreement or any applicable Service Order by the other Party.
5.4 Survival of Provisions. Sections 1, 2.4, 3, 4, 5, 6.3, 6.4, 7.4, 8, 9 and 10, as well as any other terms hereof that by their intent or meaning would reasonably be deemed as intended to so survive, shall survive any termination or expiration of this Agreement. No termination
hereunder shall constitute a waiver of any rights or causes of action that either Party may have based upon events occurring prior to the termination date.
6. Warranties.
6.1 Mutual Warranties. Each Party hereby represents, warrants, and covenants to the other that: (a) it has the power to enter into and perform this Agreement; (b) the execution of this Agreement and each Service Order has been duly authorized by all necessary corporate action of the Party; (c) this Agreement and each Service Order constitutes a valid and binding obligation on the Party, enforceable in accordance with its terms; (d) no consent or approval of any other person or governmental authority is necessary for this Agreement to be effective; (e) neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by it or an applicable Service Order would constitute a default or violation of the Party’s charter documents and/or other agreements; and (f) it will comply with all applicable laws in the performance of its obligations under this Agreement.
6.2 MT Warranties. MT hereby represents and warrants that the Platform will not knowingly violate or infringe upon the Intellectual Property Right of any third party. MT further represents and warrants that (a) no portion of the Platform will knowingly contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines, and (b) it will only use Customer Data in connection with the provision of the Platform and/or the performance of the Services on behalf of Customer, as applicable, or as otherwise provided in this Agreement. MT shall: (a) implement reasonable and appropriate technical and organizational measures designed to protect Customer Data from and against any accidental or unlawful destruction or any accidental loss, alteration, unauthorized disclosure, use or access; and (b) process Customer Data in accordance with Customer’s instructions, except as otherwise permitted in this Agreement. MT will provide commercially reasonable levels of security for all Services provided by MT hereunder and networks being utilized by MT in connection with the provision of the Platform and/or Services hereunder.
6.3 Customer Warranties. Customer hereby represents and warrants that (a) it shall comply with the undertakings set forth in Section 2.2 hereof; (b) the Customer Data provided to MT has been collected, stored and processed by Customer and has been supplied to MT in accordance with all applicable laws; (c) the Customer Data does not and will not violate or infringe upon the Intellectual Property Right of any third party; and (d) none of the Customer Data will contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines.
6.4 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT THE PLATFORM AND SERVICES PROVIDED BY MT PURSUANT TO THIS AGREEMENT AND ANY SERVICE ORDER ARE BEING PROVIDED TO CUSTOMER, “AS IS, WITH ALL FAULTS.” EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER REPRESENTATION OR WARRANTY OF ANY KIND, AND EACH PARTY HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MT DOES NOT WARRANT THAT THE PLATFORM
AND/OR SERVICES WILL (I) BE UNINTERRUPTED; (II) BE FREE FROM INACCURACIES, ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS; (III) MEET CUSTOMER’S REQUIREMENTS; OR (IV) OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE CUSTOMER USES. CUSTOMER’S USE OF THE PLATFORM AND SERVICES IS SOLELY AT CUSTOMER’S RISK. WITHOUT LIMITING THE FOREGOING, CUSTOMER ACKNOWLEDGES AND AGREES THAT (X) THE PLATFORM AND SERVICES AND THE USE THEREOF MAY CONTAIN OR REFLECT DATA FROM THIRD PARTIES, AND MT MAKES NO GUARANTEE AS TO THE TIMELINESS, ACCURACY, RELIABILITY, AVAILABILITY, LOCATION, FREQUENCY OF UPDATES, OR ANY OTHER ASPECT REGARDING THE CHARACTERISTICS OR USE OF THE INFORMATION PRESENTED, AND (Y) THE PLATFORM AND SERVICES AND THE USE THEREOF MAY RELY ON TECHNOLOGY FROM THIRD PARTIES (INCLUDING, WITHOUT LIMITATION, ALPACA), AND MT MAKES NO GUARANTEE AS TO THE TIMELINESS, ACCURACY, RELIABILITY, AVAILABILITY, LOCATION, FREQUENCY OF UPDATES, OR ANY OTHER ASPECT REGARDING THE CHARACTERISTICS OR USE OF ANY SUCH THIRD PARTY TECHNOLOGY. CUSTOMER ACCEMT SOLE RESPONSIBILITY AND RISK ASSOCIATED WITH THE USE OF THE THIRD PARTY DATA AND THIRD PARTY TECHNOLOGY PROVIDED, CONNECTED TO, AND/OR OTHERWISE MADE AVAILABLE TO CUSTOMER IN CONNECTION WITH THE PERFORMANCE OF THIS AGREEMENT. Customer’s exclusive remedy (and MT’ sole obligation) for violation of its warranties set forth in this Agreement shall be for MT to promptly replace the defective portions of the Platform; provided that if MT is unable to replace the same within 90 days of notification by Customer of a breach, Customer’s sole remedy is to terminate this Agreement.
7. LIMITATIONS ON LIABILITY AND INDEMNITY
7.1 Exclusion of Damages. MT WILL NOT BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, REGARDLESS OF WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, AND EVEN IF MT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
8.2 Limitation on Liability. NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, IN NO EVENT WILL MT’ LIABILITY UNDER THIS AGREEMENT OR AN APPLICABLE SERVICE ORDER EXCEED $10,000. EACH PARTY ACKNOWLEDGES THAT IT HAS ENTERED INTO THIS AGREEMENT RELYING ON THE LIMITATIONS OF LIABILITY STATED HEREIN AND THAT THOSE LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY.
8.INDEMNIFICATION
8.1 Indemnification from Customer. Customer shall indemnify and hold MT, and its employees, representatives, agents, directors, officers, and representatives (the “MT Indemnified Parties”) harmless, and at MT’ option defend the MT Indemnified Parties, from and against any damages, losses, costs, settlements, judgments, awards, fines, penalties, interest, liabilities, or expenses (including without limitation, reasonable attorneys’ fees and disbursements and court costs) incurred in connection with any third-party claim, demand or action (“Claim”) brought against any of the MT Indemnified Parties arising out of (a) Customer’s use of the Platform and Services other than in accordance with this Agreement, a Service Order, and/or applicable law, (b) any alleged breach by Customer of any provision of this Agreement, including its representations and warranties set forth herein, or a Service Order, and (c) Customer’s gross negligence or willful misconduct.
8.2 Indemnification from MT. MT shall indemnify and hold Customer, and its employees, representatives, agents, directors, officers, and representatives (the “Customer Indemnified Parties”) harmless, and at MT’ option defend the Customer Indemnified Parties, from and against any damages, losses, costs, settlements, judgments, awards, fines, penalties, interest, liabilities, or expenses (including without limitation, reasonable attorneys’ fees and disbursements and court costs) incurred in connection with any Claim brought against any of the Customer Indemnified Parties arising out of any allegation that the Platform violates or infringes upon the Intellectual Property Rights of any third party. Customer must promptly notify MT of any Claim. If any of the Platform becomes, or in MT’ opinion is likely to become, the subject of an infringement Claim under this Agreement, MT may, at its sole option and expense, either (x) procure for Customer the right to continue using the infringing materials, (y) replace or modify the applicable the Platform so that it becomes non-infringing, or (z) solely if clauses (x) and (y) are not commercially viable, terminate this Agreement. Notwithstanding the foregoing, MT will have no obligation with respect to any infringement Claim based upon (i) any use of the Platform not in accordance with this Agreement, (ii) any use of the Platform in combination with other products, equipment, or software not supplied by MT, (iii) any modification of the Platform by (a) any person other than MT or its authorized agents or subcontractors or (b) by MT or its authorized agents or subcontractors in compliance with the designs, specifications or instructions of Customer; and (iv) continued allegedly infringing activity by Customer after Customer has been notified of the possible infringement and has been provided with an updated, non-infringing version of the Platform.
8.3 Indemnity Process. Should any claim subject to indemnity be made against a Party hereto, the Party against whom the Claim is made agrees to provide the other Party with prompt written notice of the Claim (provided that any delay in notification will not relieve the Indemnitor of its obligations hereunder except to the extent that the delay impairs its ability to defend). The indemnifying Party will control the defense and settlement of any Claim. The indemnified Party agrees to cooperate with the indemnifying Party and provide reasonable assistance in the defense and settlement of such Claim. The indemnifying Party is not responsible for any costs incurred or compromise made by the indemnified Party unless the indemnifying Party has given prior written consent to the cost or compromise. If a conflict of interest arises between the indemnitor and the indemnitee for the types of claims set forth herein, and the indemnitee under the appropriate section sends a written notice of such conflict of interest to the indemnitor, then the indemnitor under that section shall provide for the indemnification of the indemnitee for (a) the cost to hire and retain separate counsel and (b) the cost of investigation, litigation and/or settlement of such Claims. If a Claim is judicially determined to have been caused by both the indemnifying Party and the indemnified Party, the apportionment of liability shall be shared between the parties based upon the comparative degree of each party’s judicially determined responsibility and to the extent necessary, a refund of all pre-funded indemnity expenses shall be made, if necessary, in accordance with the foregoing.
9. GENERAL TERMS
9.1 Independent Contractors. The relationship of MT and Customer established by this Agreement is that of independent contractors, and nothing contained in this Agreement will create or be construed to create any partnership, joint venture, agency, franchise, sales representative, employment, or fiduciary relationship between the Parties.
9.2 Governing Law; Jurisdiction. This Agreement is to be construed in accordance with and governed by the internal laws of the State of New York, without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of New York to the rights and duties of the Parties. Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement may be brought against any of the Parties only in the courts of the State of New York, located in New York County, New York, or, if it has or can acquire the necessary jurisdiction, in the United States District Court serving New York County, New York. Each of the Parties consents to the exclusive jurisdiction of such courts (and the appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein. THE PARTIES HEREBY WAIVE ANY RIGHT TO A JURY TRIAL IN ANY ACTION BETWEEN THE PARTIES.
9.3 Assignment. Neither this Agreement nor any applicable Service Order may be assigned, in whole or in part, by Customer without the prior written consent of MT. MT shall have the right to assign or otherwise transfer this Agreement or any of its rights or obligations hereunder. Any purported assignment, transfer, delegation or other disposition by Customer, except as permitted herein, shall be null and void. This Agreement and each applicable Service Order shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns.
9.4 Recovery of Fees by Prevailing Party. If any legal action, including, without limitation, an action for arbitration or equitable relief, is brought by one Party against the other Party relating to this Agreement or a Service Order or the breach or alleged breach hereof or thereof, the prevailing Party in any final judgment or arbitration award, or the non-dismissing Party in the event of a voluntary dismissal by the Party instituting the action, will be entitled to reimbursement from the other Party for the full amount of all reasonable expenses, including all court costs, arbitration fees and actual attorneys’ fees paid or incurred in good faith.
9.5 Severability. If the application of any provision of this Agreement or any applicable Service Order to any particular facts or circumstances will be held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then (a) the validity of other provisions of this Agreement or any applicable Service Order will not in any way be affected thereby, and (b) such provision will be enforced to the maximum extent possible so as to effect the intent of the Parties and reformed without further action by the Parties to the extent necessary to make such provision valid and enforceable.
9.6 Waiver. A waiver of a Party’s breach of any provision of this Agreement or an applicable Service Order will not operate as or be deemed to be a waiver of that Party’s prior, concurrent, or subsequent breach of that or any other provision of this Agreement and/or Service Order.
9.7 Force Majeure. Neither Party will be deemed in default of this Agreement or a Service Order to the extent that performance of its obligations (other than payment obligations) or attemMT to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, acts of war or terrorism, shortage of materials or supplies, failure of transportation or communications or of suppliers of goods or services, or any other cause beyond the reasonable control of such Party.
9.8 Notices. Any notice or approval desired or required to be provided to a Party hereunder will be given to such Party in writing by overnight messenger (notice deemed effective the business day after such messenger’s acceptance (which acceptance must occur before such messenger’s required deadline) for next business day service), mail (notice deemed effective three (3) days after mailing), or e-mail (noticed deemed effective upon receipt of a return email, other than an automatically generated return e-mail, indicating that the e-mail notice has been received), addressed to such Party at the address for such Party specified in the introductory paragraph of this Agreement. A Party may designate a substitute address by written notice to the other with the effectiveness of such notice governed by the terms of this Section. If the final day for giving notice is a Saturday, Sunday, or nationally recognized holiday then the time for giving such notice will be extended to the next business day.
9.9 Counterparts. This Agreement and any Service Order entered into hereunder may be executed in two or more counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument. Electronic, facsimile or scanned signatures shall have the same force as an original signature.
9.10 Entire Agreement. The provisions of this Agreement along with each applicable Service Order constitutes the entire agreement between the Parties with respect to the subject matter hereof, and this Agreement along with each applicable Service Order supersedes all prior agreements or representations, oral or written, regarding such subject matter.
9.11 Amendments. This Agreement and each Service Order may be amended only by a writing signed by both Parties. Use of shrink wrap agreements, click wrap agreements, and similar acknowledgements shall specifically be of no force or effect and shall not serve to modify, amend, or supersede this Agreement.
9.12 Headings. The headings to the sections of this Agreement are used for convenience only.
9.13 Marketing. Customer hereby grants to MT a non-transferable, non-exclusive, non-sublicensable, royalty-free, right and license to use and display those trade names, trademarks, service marks, and logos (collectively, “Marks”) of the Customer in fulfillment of its obligations under this Agreement and in other promotional materials for MT’ business and services for the purposes of promoting the existence of the relationship between the Parties as set forth in this Agreement. MT may issue a press release, subject to the prior review of the Customer, relating to this Agreement or the relationship of the Parties without the prior written consent of Customer.
9.14 Capitalized Terms. Capitalized terms used in any Service Order shall have the meanings ascribed to them in this Agreement unless otherwise noted in the applicable Service Order. Capitalized terms used in a Service Order shall not have the defined meanings from any other Service Order, unless explicitly stated otherwise in such Service Order.
